Monday, March 07, 2005

Via Volokh, I found Jack Balkin’s humorous prediction of the Supreme Court’s decision in the Ten Commandments case:

Justice O'Connor upholds five, strikes down five.

That would certainly be consistent with O’Connor’s voting record. But it also raises the question of which five?

I’m reminded of a parliamentary debate round I judged a few years ago. The proposition team chose to run an opp-choice case (i.e., describing a situation and then allowing the opposition team to choose which side to defend). Their case statement was something like this: “You’re Moses. You’re walking down from Mount Sinai with the Ten Commandments, which God has just handed to you. Suddenly, your sandal catches on a root and you trip. As you fall, you realize you will only be able to save one tablet from getting crushed – either the tablet in your left arm with Commandments 1 through 5, or the tablet in your right arm with Commandments 6 through 10. You have just enough time to consider all the arguments to be presented in this debate. Which tablet do you choose to save?”

Interestingly, it turns out that commandments 1-5 actually differ thematically from 6-10 (at least in many versions). In a nutshell, 1-5 outline proper behavior of man toward God (no gods before me, no graven images, keep the Sabbath, etc.), while 6-10 outline proper behavior toward other men (no killing, no theft, no adultery, etc.). And this difference would actually provide the basis for O’Connor to split the difference as Balkin suggests! Only the first five commandments carry an overtly religious component. The latter five commandments don’t necessitate reference to God, and at least three of them still appear in the laws of most democratic countries. Arguably, then, posting commandments 6-10 in public courthouses would be consistent with the Establishment Clause, while posting 1-5 would not.

6 comments:

Anonymous
said...

I agree with your choice to the extent that I would have no trouble with those five being taught in the public schools--especially the ones about killing and stealing. Although, the one about coveting is sort of contrary to underlying capitalist motivations. In addition, perhaps the commandment about keeping the sabbath holy should be allowed to be posted. Why? Because the Supreme Ct. has already ruled that "Blue Laws" are legal (i.e., can't sell booze on Sunday etc.) explicitly caving in to religious kooks (everyone who is religious in my opinion) on this issue. But then again, you know only too well about the economic impact of religious doctrine. In fact, your book on the impact of Prohibition was all about that.

I would think that most Christians would appreciate the Ten Commandments as good piece of history that is still relevant to the individual today. But that's the key word; "individual" and not for everybody. What these Christians are forgetting is that the commandments were a guide written in the most basic and rudimentary way for a brand new society that formed when brought out of Egypt to the desert. There were hundreds of thousands of people who were slaves in Egypt that Moses called out to the desert and they had absolutely no laws. The laws were created to prevent anarchy. It wasn't an already existing society that God decided to send these laws to thus the simplicity. You can see that this is true as hundreds of new Levitical laws followed suit. And the Ten Commandments have been somewhat replaced Jesus' teachings as the paramount "laws" to live by.

But if we're talking which commandments should be rid of, I would think only 3 of the commandments are not in violation with the constitution. Commandment 1-4, and 10 violates the First Amendment. Religious freedom and expression or non-expression is a right guaranteed by the First Amendment. And so is coveting; people can choose to have any wants, thoughts, beliefs. Commandment 5 and 9; honoring parents and not committing adultery are moral choices and not law. That just leaves 6, 7, and 8 that is incorporated into the current legal system. If you murder, you'll go to jail. And if you bear false witness to the government (perjury) you'll go to jail like Martha Stewart did. And finally, stealing is punishable by law as it is violating someone else's property.

On a side note I don't mean to be irreverent (i believe in God btw), but I think it'll be funny if we also place some of the Levitical laws next to the commandments. Like "don't cook a baby goat in it's mother's milk (I never got that one)." or "Don't eat lobster and shrimp." Actually it's something like don't eat shell fish or something like that.

I agree that your covetousness and respect for your parents ought not be regulated by law. But these commandments are not necessarily *religious* in character, and thus would not pose a First Amendment problem. Since honoring parents is the 5th commandment, perhaps O'Connor should uphold 6 and strike down 4.

Is it that obvious that adultery should be legal? If we see the marriage as a contract, and agree that enforcement of valid contracts is a proper function of government, then adultery could be punished as breach of contract (punishable with monetary damages but not jail time). I'm not saying that's what we should do, but there's at least a case. And as with respect for parents and covetousness, no reference to God is required.

Also, one source I read interpret "covet" to include making a plan to acquire others' things, not just wanting them.

I was just stating that adultery is relevant as grounds to end a marriage in divorce courts but not a reason enough to make it a criminal case (much to the chagrin of the spurned spouses I'm sure). If it were to be made a criminal to commit adultery, it will certainly be struck down as unconstitutional. And isn't CA a no-fault state in divorce and each party gets 50/50? But I did hear that J.Lo (during the Bennifer union), drafted a contract that if Ben were to be unfaithful, she's entitled to 2 million each time. How do I even know this? Don't ask. I guess you can draft a prenuptual agreement any way you like to ensure fidelity. And coveting can certainly lead to making plans to acquire or steal others' things, but as I understand it it's just wanting. I always thought of this commandment as a means to prevent people from being unhappy.As far as we're on the topic of morality. I always wondered how people seem to have an innate sense of morality. Somehow we all know murder and rape is bad. Without a belief in God (not necessarily a christian God) to institute what is right and wrong, where do we get them? Of course you don't have to answer this. I will just need to read David Hume or whoever is a leading philosopher on morality. Google probably will have a surplus of info.